THERE ARE TWO VERSIONS OF THE "SUMMONS IN CHAMBERS": THE FIRST IS
A COPY OF THE ORIGINAL: THE VERSION BELOW THAT HAS
COMMENTS IN RED TEXT BY ALFRED DONOVAN
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(CIVIL DIVISION) CIVIL SUIT NO. S2 - 23 - 38 - 2006
BETWEEN
1. SARAWAK SHELL BHD (71978-W)
2. SHELL MALAYSIA TRADING SENDIRIAN BERHAD (6078-M)
3. SHELL REFINING COMPANY (FEDERATION OF MALAYA) BHD (3926-U)
4. SHELL TIMUR SDN BHD (113304-H)
5. SHELL EXPLORATION AND PRODUCTION MALAYSIA B.V. (993963-V)
6. SHELL OIL AND GAS (MALAYSIA) LLC (993830-X)
7. SHELL SABAH SELATAN SDN BHD (228504-T)
8. SABAH SHELL PETROLEUM COMPANY LTD (993229-W) ... PLAINTIFFS
AND
HUONG YIU TUONG ... DEFENDANT
SUMMONS IN CHAMBERS
LET ALL PARTIES concerned attend before the Judge in Chambers on the day of , 2006 at am/pm on the hearing of an application by the Plaintiff for the following orders under Order 38 Rule 2 of the Rules of the High Court 1980 namely that:-
The grounds of this application are as follows:
a. Between April and May 2004, the Defendant circulated various emails which were defamatory of the Plaintiffs. The Plaintiffs commenced proceedings against the Defendant for them in Kuala Lumpur High Court Civil Suit No. S2-23-41-2004 (the first action).
b. On 24.6.04 the High Court made an Order in the first action against the Defendant, in this action, on inter alia the following terms:
"The Defendant, by himself, his servants or agents or otherwise howsoever, be restrained from publishing or causing to he published on the internet website "Shell Whistleblower No. 2" any statements, articles, correspondence and any other publications whatsoever, concerning the Plaintiffs’ and/or "Shell management" and/or the Plaintiffs' Management Officers and/or the Plaintiffs' servants or agents alleging that they or each or them are liars, cheats, dishonest, corrupted and practiced deception and conspiracy, criminal conduct and were generally evil and/or statements to similar effect, pending the trial of this action or further order.
The Defendant, by himself, his servants or agents or otherwise howsoever, be restrained from publishing or causing to be published any article, material correspondence, circulars in any form whatsoever containing allegations that the Plaintiffs and/or "Shell Malaysia" and/or the Plaintiff's servants or agents are liars, cheats, dishonest, corrupted and practised deception and conspiracy, criminal conduct and were generally evil, and/or statements to similar effect, pending the trial of this action or further order".
c. The Plaintiffs' contend that the Defendant has disobeyed the Order by publishing or causing to be published further defamatory statements. Contempt proceedings have been commenced against him for this.
d. Without prejudice to the Plaintiffs rights in the first action, the Defendant made further defamatory publications against the Plaintiffs. These are the subject matter of the present action.
e. The Plaintiffs applied herein for interim injunctive relief.
Subsequent conduct
f. After this application was filed and before it was heard, the Defendant made further defamatory publications of and concerning the Plaintiffs. All were published on the Shellnews.net which Donovan owns and controls.
g. Donovan thereafter made 4 postings on his Shellnews.net website on the Notice to Show Cause served by the Plaintiffs on the Defendant in the first action. The publication of these comments themselves constitutes contempt of court as they comment on the merits of the contempt proceedings against the Defendant.
h. In particular, the postings include an allegation that a Malaysian judge, when hearing a matter commenced by a 'Shell' company, ruled in Shell's favour because of inducements by Shell. The juxtaposition of these otherwise irrelevant remarks into the comments on the Notice to Show Cause in this action, amounts to an assertion that the Malaysian courts have ruled against the Defendant because they have been influenced by the Plaintiffs.
i. Donovan expressly states that more postings will be made. These too will be as the Defendant's servant and/or agent.
j. The Plaintiffs contend that, from the above, the Defendant has published and has manifested a clear intention of continuing to publish defamatory statements. In this he is aided and abetted by Donovan.
k. The Defendant filed 2 affidavits to oppose the Plaintiffs' application for interim injunctive relief. The first was by the Defendant, and the second by Donovan.
Donovan's affidavit of 19.5.06
l. Donovan's stated position is that all the publications that form the subject of this matter were by him and/or in conjunction with his son. He contends that they were done independently, and not in any way on behalf of the Defendant.
m. The Plaintiffs deny this conclusion. Their position is that the postings were done at the behest of the Defendant and therefore on his behalf. Even if they were not, they were published by Donovan with the Defendant's knowledge that such publication was certain. The Defendant is therefore responsible for the publications.
n. The Plaintiffs do not believe the bare assertions made by Donovan in his affidavit. In addition, the Plaintiffs contend that the effect of Donovan's affidavit is that he admits aiding and abetting the Defendant in breaching the Injunction Order in the first action. At the very least, Donovan impeded or interfered with the administration of justice by ensuring that the Defendant breaches that Injunction Order.
o. Donovan continues to impede or interfere with the administration of justice. He has published his own latest affidavit on his website at http://shellnews.net/2006affidavit/shellnewsnetaedaffidavitmay2006.htm.
p. Donovan is outwardly contemptuous of this Honourable Court. His latest posting contains a hyperlink entitled:
Click here to ACCESS THE DR HUONG ARTICLES PROHIBITED BY THE HIGH COURT OF MALAYA ORDER (English) (Do not access the Dr Huong articles immediately above if you are located within the legal jurisdiction of the High Court of Malay)
q. If Donovan accepts sole responsibility for the publications, he should submit to Malaysian jurisdiction and submit to cross-examination. The Plaintiffs therefore would like to cross-examine Donovan as a precondition to his affidavit being used. This Honourable Court can then satisfy itself as to whether the statements made by Donovan are in fact true.
Further grounds are set out in the affidavit of THAVAKUMAR KANDIAH PILLAI filed herewith.
Dated this day of , 2006.
DEPUTY REGISTRAR
HIGH COURT
KUALA LUMPUR
To:
The Defendant and/or his solicitors
Messrs Lee Ong & Kandiah
Advocates & Solicitors
Suite 2.07-2.10, 2nd Floor
Wisma Mirama
Jalan Wisma Putra
50460 Kuala Lumpur
(Ref: ES/67/4/06/JH)
This Summons in Chambers is filed by Messrs T H Liew & Partners, solicitors for the Plaintiffs abovenamed and whose address for service is at 4-O2, 4th Floor, Straits Trading Building, 2 Lebuh Pasar Besar, 50050 Kuala Lumpur.
Tel : 03 2612 9000
Fax : 03 2612 9001
Ref : LTH/SARAWAK SHELL/00599-06
NOW WITH THE COMMENTS OF ALFRED DONOVAN ADDED IN RED TEXT AND CITED HYPERLINKS ACTIVATED: UPDATED 19 JULY 2006
IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR
(CIVIL DIVISION) CIVIL SUIT NO. S2 - 23 - 38 - 2006
BETWEEN
1. SARAWAK SHELL BHD (71978-W)
2. SHELL MALAYSIA TRADING SENDIRIAN BERHAD (6078-M)
3. SHELL REFINING COMPANY (FEDERATION OF MALAYA) BHD (3926-U)
4. SHELL TIMUR SDN BHD (113304-H)
5. SHELL EXPLORATION AND PRODUCTION MALAYSIA B.V. (993963-V)
6. SHELL OIL AND GAS (MALAYSIA) LLC (993830-X)
7. SHELL SABAH SELATAN SDN BHD (228504-T)
8. SABAH SHELL PETROLEUM COMPANY LTD (993229-W) ... PLAINTIFFS
AND
HUONG YIU TUONG ... DEFENDANT
SUMMONS IN CHAMBERS
LET ALL PARTIES concerned attend before the Judge in Chambers on the day of , 2006 at am/pm on the hearing of an application by the Plaintiff for the following orders under Order 38 Rule 2 of the Rules of the High Court 1980 namely that:-
I will be 90 years old on my next birthday. I receive a war disability pension from the British Army arising from fighting in the Burma Campaign against the Japanese some 60 years ago. I had half of one lung removed in a related operation. Among other ailments associated with my age, I have diabetes and angina. The prospect of me travelling to Malaysia is therefore nil. A much better course of action would be for Royal Dutch Shell to sue me and/or my son John, for defamation in the appropriate legal jurisdiction instead of hounding a Malaysian surrogate. As is evident from this press statement by Shell in March 1995, our campaigning activities against Shell on the Internet, and in other forms, started over a decade before Dr Huong was wrongly accused by Shell in the current matter.
My son and me relish the opportunity to face Shell in "Open Court" in the libel courts, but not in a court located thousands of miles away.
The grounds of this application are as follows:
a. Between April and May 2004, the Defendant circulated various emails which were defamatory of the Plaintiffs. The Plaintiffs commenced proceedings against the Defendant for them in Kuala Lumpur High Court Civil Suit No. S2-23-41-2004 (the first action).
It is my understandings that the relevant emails containing alleged defamatory comments were sent by Dr Huong solely to Shell employees within the Royal Dutch Shell Group, not to any third party. If this is correct, then the question of defamation does not seem to arise in respect of the emails.
b. On 24.6.04 the High Court made an Order in the first action against the Defendant, in this action, on inter alia the following terms:
"The Defendant, by himself, his servants or agents or otherwise howsoever, be restrained from publishing or causing to he published on the internet website "Shell Whistleblower No. 2" any statements, articles, correspondence and any other publications whatsoever, concerning the Plaintiffs’ and/or "Shell management" and/or the Plaintiffs' Management Officers and/or the Plaintiffs' servants or agents alleging that they or each or them are liars, cheats, dishonest, corrupted and practiced deception and conspiracy, criminal conduct and were generally evil and/or statements to similar effect, pending the trial of this action or further order.
The Defendant, by himself, his servants or agents or otherwise howsoever, be restrained from publishing or causing to be published any article, material correspondence, circulars in any form whatsoever containing allegations that the Plaintiffs and/or "Shell Malaysia" and/or the Plaintiff's servants or agents are liars, cheats, dishonest, corrupted and practised deception and conspiracy, criminal conduct and were generally evil, and/or statements to similar effect, pending the trial of this action or further order".
We can supply evidence to confirm the above allegations in relation to Shell management. The fact that the allegations are TRUE is a complete defence. Shell management admitted (after an internal report was leaked) that its activities in Nigeria fed a cycle of corruption and violence. The reserves fraud confirmed that our repeated warnings (including a warning to Queen Beatrix about Royal Dutch Shell) based on our own horrendous experiences with Shell senior management were 100% correct. The recent revelations of a Shell Whistleblower, Mr Bill Campbell, reinforces the evidence of a culture of cover-up and deceit at the very highest levels of Shell management. A culture which can only properly be categorised as evil. In the case of the Brent field scandal (Brent Bravo/Bill Campbell interview) at least one member of Shell senior management, Malcolm Brinded, apparently has the blood of two Shell offshore on his hands (Worse things happen at sea).
c. The Plaintiffs' contend that the Defendant has disobeyed the Order by publishing or causing to be published further defamatory statements. Contempt proceedings have been commenced against him for this.
The Defendant has no means to publish anything. We have admitted publishing the articles and legal documents in question. End of story.
d. Without prejudice to the Plaintiffs rights in the first action, the Defendant made further defamatory publications against the Plaintiffs. These are the subject matter of the present action.
More Shell lawyer BS. The Defendant has never published anything. We did.
e. The Plaintiffs applied herein for interim injunctive relief.
Subsequent conduct
f. After this application was filed and before it was heard, the Defendant made further defamatory publications of and concerning the Plaintiffs. All were published on the Shellnews.net which Donovan owns and controls.
The Defendant, Dr Huong, has never owned or operated any website. The cited internet website "Shell Whistleblower No. 2" has never existed. This can easily be verified but Shell lawyers persist in repeating this false claim. The Defendant had never at any time posted or published any article or any comments on any website associated with us.
g. Donovan thereafter made 4 postings on his Shellnews.net website on the Notice to Show Cause served by the Plaintiffs on the Defendant in the first action. The publication of these comments themselves constitutes contempt of court as they comment on the merits of the contempt proceedings against the Defendant.
The question of contempt of court does not arise. The fact of the matter is that no websites owned and operated by my son or me are registered or hosted within the jurisdiction of the High Court of Malaya. Furthermore, we do not reside within the jurisdiction of the High Court of Malaya. The Royal Dutch Shell Group is free to initiate proceedings in the appropriate legal jurisdiction against us. For some reason Royal Dutch Shell is chicken as far as that option is concerned.
h. In particular, the postings include an allegation that a Malaysian judge, when hearing a matter commenced by a 'Shell' company, ruled in Shell's favour because of inducements by Shell. The juxtaposition of these otherwise irrelevant remarks into the comments on the Notice to Show Cause in this action, amounts to an assertion that the Malaysian courts have ruled against the Defendant because they have been influenced by the Plaintiffs.
More Shell lawyer BS. Due to laziness or more likely slyness, Shell lawyers have failed to identify or provide an extract of the alleged comment about "inducement" (bribe). Shell is in a partnership with the Malaysian government in important multi-billion dollar projects: the Shell/PETRONAS relationship. PETRONAS is a Malaysian national asset. So the plain fact is that an individual associated with Shell's partner (the Malaysian government) is sitting in judgement in a dispute which Shell has with a former Shell geologist. We can surely be forgiven for expressing concern in the circumstances over the possibility of a judge being influenced, subconsciously, in favour of such an important partner of his national government. That does not imply any inducement.
We are amazed that against the wishes of Dr Huong, the defamation case is being heard in Kumar Lumpur some 1300 kilometres from where has lived all of his life (the City of Miri) where he also worked for Shell. He has been unemployed and unemployable since Shell launched the original proceedings against him over two years ago. He cannot afford to travel to, or stay in Kumar Lumpur. Shell has unlimited financial resources yet has been allowed to have it's way so far in forcing the case to be heard 1300 kilometres from where Dr Huong lives. That is a blatant affront to natural justice. The scales of justice are clearly being tilted in favour of the multinational giant.
Dr Huong has also been prevented for over two years from exercising his fundamental human right to freedom of expression under the UN Universal Declaration of Human Rights, which Shell purports to support. It is entirely wrong that Shell is being allowed to waste time on multiple injunctions etc instead of bringing its defamation claim before the courts. By using this strategy, Shell has succeeded in gagging Dr Huong for years without the basis of the defamation claim (which happens to be founded on false evidence) actually ever being heard.
The plain fact is that ordinary mortals like ourselves and Dr Huong move in entirely different circles to High Court judges. In our last High Court battle with Shell - the "Smart" trial, the action was heard by Mr Justice Laddie (Sir Hugh Laddie QC). Many of his decisions were inexplicable. We had no inkling at the time of his undisclosed connections with Shell. He retained a commercial relationship with a legal practice that had a strong connection with Shell at Group Chairman level (the son of the then Group Chairman, Sir Mark Moody-Stuart, was a barrister at the chambers). I wrote to the Lord Chancellor, Lord Falconer, complaining about the behaviour of the Judge and brought to his attention the personal involvement of the Moody-Stuart family in the relevant case, including the bizarre intervention of Lady Judy Moody-Stuart, the wife of Sir Mark and mother of Tom Moody-Stuart, the barrister who has publicly acknowledged his regard for Sir Hugh.
By coincidence or otherwise, Mr Justice Laddie made newspaper headlines by subsequently resigning in controversial circumstances which reflected on his integrity and judgement. We are now informed that Lord Falconer would not acknowledge the resignation letter from the Judge who now acts as a consultant to a legal firm which coincidently boasts Shell as a client. Sir Hugh Laddie QC recently gave a lecture at a seminar chaired by the Shell legal director, Richard Wiseman, who was present in court for the three week Smart trial.
One of the key witnesses for Shell, Mr Stuart Carson, was at the time, a partner in PriceWaterhouseCoopers, who earn millions in income for being Shell's auditors. This was not disclosed in court. PWC are currently defendants alongside Shell and named directors, including Shell CEO Jeroen van der Veer, in a multibillion dollar global class action lawsuit in respect of the reserves fraud. We were pleased to generate from our website the class representative of all non-American Shell stock holders. Mr Carson gave testimony that Shell had never taken an option on any intellectual property put forward by the company that I co-founded with my son. Unfortunately for Mr Carson, we had original documents proving that he personally negotiated, agreed and paid us for an option on a concept while he was a Shell national Manager.
I have mentioned the Smart case because it shows what a small world it is for a global player such as Shell. It has vast power and widespread influence; that it is a plain fact. It does not however mean that Shell has bribed a Malaysian Judge (or any other judge) and we have never made any such suggestion. With regard to Sir Hugh Laddie QC, my concern, for a number of reasons, was solely in respect of the possibility of subconscious bias. He displayed what I consider to be outrageous and blatant bias in favour of Shell. WE WERE ENTITLED TO A TRIAL BEFORE AN IMPARTIAL JUDGE: A VITAL ENTITLEMENT WHICH WE DID NOT RECEIVE. Finishing up on the Smart trial, although a so called "joint press statement" was issued after a compromise settlement had been agreed, which announced a stalemate result, the actual outcome was rather different. Shell paid all legal costs and my son received a secret nominal payment. The unsatisfactory settlement was negotiated under duress (Shell's admitted undercover activity had adversely influenced the evidence of our key witness) and in the knowledge that the Judge was biased.
i. Donovan expressly states that more postings will be made. These too will be as the Defendant's servant and/or agent.
Guilty on the first charge as this posting proves. This publication results from the Summons in Chambers initiated by Shell's lawyers not from any action or involvement by Dr Huong. The Summons in Chambers and the associated Affidavit were quite properly supplied to me by lawyers Messrs Lee Ong & Kandiah acting for Dr Huong as they both relate to my May 2006 Affidavit.
j. The Plaintiffs contend that, from the above, the Defendant has published and has manifested a clear intention of continuing to publish defamatory statements. In this he is aided and abetted by Donovan.
More BS. Dr Huong has never published any defamatory comments on Donovan websites. We have never been his agents or servants.
k. The Defendant filed 2 affidavits to oppose the Plaintiffs' application for interim injunctive relief. The first was by the Defendant, and the second by Donovan.
Donovan's affidavit of 19.5.06
l. Donovan's stated position is that all the publications that form the subject of this matter were by him and/or in conjunction with his son. He contends that they were done independently, and not in any way on behalf of the Defendant.
We do not act as the agent or servant of any third party. We publish what we choose to publish and do so at our responsibility.
m. The Plaintiffs deny this conclusion. Their position is that the postings were done at the behest of the Defendant and therefore on his behalf. Even if they were not, they were published by Donovan with the Defendant's knowledge that such publication was certain. The Defendant is therefore responsible for the publications.
More Shell lawyer BS. We are entirely responsibility for what is published on our websites. Dr Huong has no influence or control over anything published by us.
n. The Plaintiffs do not believe the bare assertions made by Donovan in his affidavit. In addition, the Plaintiffs contend that the effect of Donovan's affidavit is that he admits aiding and abetting the Defendant in breaching the Injunction Order in the first action. At the very least, Donovan impeded or interfered with the administration of justice by ensuring that the Defendant breaches that Injunction Order.
I legally own the relevant websites and domain names. My son and me admit publication. The published allegations were well founded. I did not breach any injunction because I am not subject to the relevant legal jurisdiction. To the best of my knowledge Dr Huong does not and never has owned any websites or domain names and has never published anything.
o. Donovan continues to impede or interfere with the administration of justice. He has published his own latest affidavit on his website at http://shellnews.net/2006affidavit/shellnewsnetaedaffidavitmay2006.htm.
(http://shellnews.net/2006affidavit/aedhuongmalayaffidavitenglishtranslationmay06.pdf)
I have inserted the correct link above as the one quoted would nor work. And I have now published this SUMMONS IN CHAMBERS. Publication does not impede anything. Unlike Shell which preaches transparency, but actually prefers deceit and cover-up, I believe in openness and act accordingly.
p. Donovan is outwardly contemptuous of this Honourable Court. His latest posting contains a hyperlink entitled:
Click here to ACCESS THE DR HUONG ARTICLES PROHIBITED BY THE HIGH COURT OF MALAYA ORDER (English) (Do not access the Dr Huong articles immediately above if you are located within the legal jurisdiction of the High Court of Malay)
I am not contemptuous of the Malaysian High Court or any member of the Malaysian judiciary. I noted that a Malaysian Judge ruled in favour of the case brought against Shell in Malaysia by the 399 former Shell employees known as "Team A". He ruled that Shell acted unlawfully in deducting money from employee retirement funds. It is unfortunate that the outcome of Shell's appeal against the decision is still pending given the plight of the relevant pensioners, many of whom are elderly, ill and dying. That case confirms that Shell senior management is ruthless and heartless. They treat hundreds of former employees like third class citizens while treating themselves to multimillion dollar remuneration packages including huge pension pots. While awaiting retirement, they have indulged themselves by acquiring a fleet of luxury jets. I therefore confess that I am contemptuous of Shell senior management, their sleazy lawyers and associated undercover agents. The Shell Malaysia Legal Manager acting for Shell in these matters has for over two years twisted the facts and ignored the truth. In my humble opinion he should be disbarred.
q. If Donovan accepts sole responsibility for the publications, he should submit to Malaysian jurisdiction and submit to cross-examination. The Plaintiffs therefore would like to cross-examine Donovan as a precondition to his affidavit being used. This Honourable Court can then satisfy itself as to whether the statements made by Donovan are in fact true.
The Plaintiffs can satisfy themselves of the truth by suing me and/or my son for defamation. We admit responsibility for ALL of the relevant publications, so that should make things much more straightforward. However they will have to sue me in an appropriate legal jurisdiction, not in a Country several thousand miles away.
Since I have no doubt that this publication will be brought to the attention of the honourable Judge hearing the application made by the EIGHT Plaintiff Shell companies I would like to ask you Sir to bear in mind Shell lawyers tactics in on the one hand putting the case why Dr Huong should compel me to travel to Malaysia for cross-examination, while at the same time sending out implied threats that I am already in contempt of court: an offence which I understand is potentially punishable by imprisonment. I am in my 90th year and it is inconceivable that with failing health I could undertake such a journey nor would any sane person agree to do so in view of the implied threats by Shell.
Further grounds are set out in the affidavit of THAVAKUMAR KANDIAH PILLAI filed herewith.
Dated this day of , 2006.
DEPUTY REGISTRAR
HIGH COURT
KUALA LUMPUR
To:
The Defendant and/or his solicitors
Messrs Lee Ong & Kandiah
Advocates & Solicitors
Suite 2.07-2.10, 2nd Floor
Wisma Mirama
Jalan Wisma Putra
50460 Kuala Lumpur
(Ref: ES/67/4/06/JH)
This Summons in Chambers is filed by Messrs T H Liew & Partners, solicitors for the Plaintiffs abovenamed and whose address for service is at 4-O2, 4th Floor, Straits Trading Building, 2 Lebuh Pasar Besar, 50050 Kuala Lumpur.
Tel : 03 2612 9000
Fax : 03 2612 9001
Ref : LTH/SARAWAK SHELL/00599-06